India – Supreme Court – A Sad Betrayal

Judgments given recently by the Supreme Court avoided ruling on whether advocacy of Hindutva vitiates an election. A larger bench should be constituted to decide on Hindutva for the sake of clarity and public confidence. By A.G. NOORANI

THE judgments given by a five-member bench of the Supreme Court on January 2, 2017, consciously avoided ruling on whether advocacy of Hindutva vitiates an election. It thus did a grave disservice to the nation. By choosing in advance to rule, instead, on a much more limited issue, it shirked its responsibility. Pending before the court were two references to a larger bench of five judges. One was on the issue of Hindutva. It was 20 years old. The other was on the limited issue of appeals to voters on the grounds of religion and caste. The court refused to touch the first. It struck off the Hindutva issue and gave a narrowly divided ruling (4-3) on the limited issue.

To appreciate the gravity of the matter and the enormity of the lapse, it is necessary to recall the entire record of the court’s rulings on Hindutva since 1995 in the light of the harm that that poisonous ideology has done to India’s secular ethos, the fons et origo of the matter.

To begin with, Hindutva is not synonymous with Hinduism. The concept of Hindutva was propounded anew by V.D. Savarkar in 1923 in his book Hindutva, written in and smuggled out of prison. It was first published by V.V. Kelkar of Nagpur in 1923 under the pseudonym A Maratha. The second edition (1942) asserted his authorship. It was published by S.S. Savarkar for Veer Savarkar Prakashan from his home, Savarkar Sadan, in Bombay (now Mumbai).

V.D. Savarkar was an atheist. He did not believe in any religion, Hinduism included. His commitment was to Hindus as a “nation”, and he went on to propound the two-nation theory explicitly in 1937 before Jinnah did. Hinduism is ancient and noble. Hindutva is modern and vicious; it was born in fact in 1923 in the book on Hindutva.

Both the publisher and the author made plain that it was a new concept different from the great and ancient religion. S.S. Savarkar wrote in the Preface: “Apart from the religious aspect involved in the conception of the words ‘Hindu’ and ‘Hinduism’, Veer Savarkar had to coin some new words such as ‘Hindutva’, ‘Hinduness’, ‘Hindudom’ in order to express totality of the cultural, historical, and above all the national aspects along with the religious ones, which mark out the Hindu People as a whole. The definition is consequently not meant to be a definition of Hindu Dharma, or Hindu religion. It is a definition of ‘Hindutva ‘Hinduness’. It is essentially national in its outlook and comprehends the Hindu People as a Hindu-Rashtra—a Hindu State.” (Emphasis added, throughout.) Thus, advocacy of a Hindu state is the same as advocacy of Hindutva and vice versa. The Preface records: “Such eminent Hindu leaders as the late Lala Lajpat Rai and Pandit Madan Mohan Malaviya and several others hailed it as the most original and scholarly contribution to the Hindu ideology.” The Lala had advocated the two-nation theory early in the 20th century. The Preface hails the “discovery of a new truth” as a “bedrock on which a consolidated and mighty Hindu Nation could take a secure stand”.

V.D. Savarkar himself was at great pains to emphasise that Hinduism must not be “confounded with the other cognate term Hinduism” (page 3); that “Hindutva is not identical with what is vaguely indicated by the term Hinduism” (page 4); and that “Hindutva is not identical with Hindu Dharma, nor is Hindu Dharma identical with Hinduism” (page 121).

What is Hindutva?What, then, is Hindutva? V.D. Savarkar wrote: “These are the essentials of Hindutva—a common nation (Rashtra), a common race (Jati) and a common civilisation (Sanskriti). All these essentials could best be summed up by stating in brief that he is a Hindu to whom Sindhusthan is not only a Pitribhu (Fatherland) but also a Punyabhu (Holyland). For the first two essentials of Hindutva—nation and Jati—are clearly devoted and connoted by the word Pitribhu while the third essential of Sanskriti is pre-eminently implied by the word Punyabhu (Holyland), it is precisely Sanskriti including Sanskartas, i.e. rites and rituals, ceremonies and sacraments that make a land a Holyland” (page 116).

Muslims and Christians do not and cannot worship India as a Holyland. But, if they did, Savarkar told them, “Ye would be most welcome to the Hindu fold” (page 115). If they did not, they would be outside the pale. This is the root of the demand for ghar wapsi—return to your home or “the Hindu fold”. Clearly, to advocate Hindutva is to urge non-Hindus to discard their religion and enter “the Hindu fold”. Savarkar asked them to adopt Hindu “rites and rituals, ceremonies and sacraments”. If this is not an appeal on the ground of a religion, what else is it? If this be called a plea for a “way of life”, it is for the Hindu way of life. I leave it to the reader to describe an attempt to portray Hindutva as a “way of life” shorn of the long accepted and recognised meaning and connotation of the term Hindutva. This is a plea for Hindu, not Indian, nationalism.

Effect on RSS, BJPSavarkar’s book Hindutva influenced the Rashtriya Swayamsewak Sangh (RSS) leaders K.B. Hedgewar and M.S. Golwalkar. Under L.K. Advani’s leadership, the Bharatiya Janata Party (BJP) adopted the ideology of Hindutva after it adopted, on June 11, 1989, the plank of a Ram Mandir on the ruins of the Babri Masjid. Its election manifestoes espoused it since 1998—“Our National Identity, Cultural Nationalism”—and explained that “the cultural nationalism of India … is the core of Hindutva”.

Its predecessor, the Jana Sangh, had tried deceptively to expound it by the name of “Indianisation” but that received short shrift. The Standing Committee of the National Integration Council adopted a statement, on October 16, 1969, which said: “We condemn the spread of the idea that any community requires to be Indianised.” An all-party conference was convened under its auspices on November 3, 1969, with Prime Minister Indira Gandhi in the chair. It denounced “Indianisation”. The Jana Sangh alone opted out. Indianisation was a subterfuge.

On February 22, 1970, Golwalkar, the RSS supremo said: “The one hope of redemption is nationalism which, in the case of Hindusthan, is Hinduism.” Hindutva signifies a bold reversion to this theme.

It began to be expounded by the BJP and the RSS openly as the communal climate became worse after Advani launched his rath yatra in 1990 on the plank of Hindutva. Communal riots and much bloodshed followed in its wake, more so after the demolition of the Babri Masjid on December 6, 1992. Nonetheless, the BJP began espousing Hindutva with greater stridency. Advani made no secret of the fact that Hindutva was meant to attract the Hindu vote. It was communalism in excelsis.

Supreme Court’s record

The Supreme Court could have nipped the mischief in the bud. It tried, initially, but changed that shortly thereafter with disastrous consequences. Here is a record of the Supreme Court’s odyssey datewise in seven cases from 1995 to 2017.

1. July 14, 1995: Dr Das Rao Deshmukh vs. Kamal Kishore Nanasaheb Kadam & Ors. (1995) 3 Supreme Court Cases; 123, decided by Justices G.N. Ray and Faizan Uddin. The court ruled: “In deciding whether a party or his collaborators had indulged in corrupt practice regard must be had to the substance of the matter rather than mere form or phraseology. In Kultar Singh’s case, this court has recognised that there are several parties whose membership is either confined to or predominantly held by members of some communities or religion and that an appeal made by candidates of such parties for votes may in an indirect way concavely be influenced by considerations of religion, race, community or language. So long as the law recognises such parties for the purpose of election and parliamentary life, this situation cannot be avoided. Such view has also been reiterated in later decisions of this court.

“It has been very strenuously contended by the learned counsel for the appellant that appeal to vote for ‘Hindutva’ should not be confused with appeal to vote only for a member of one community, namely the Hindus. Criticism of partisan treatment meted out to the Hindus by the ruling Congress party or appeasement policy in favour of one community or followers of a particular religion impairing national integrity and appeal to oppose such improper and anti-national policy should not be held to be an appeal to vote only on the basis of a particular religion. It has been contended that the thrust of the speeches was that unequal treatment meted out to Hindus and deliberate hurting of sentiments of Hindus have encouraged divisive forces and anti-national elements in the country and Hindus should be aware of such divisive forces and try to unite against such divisive and anti-national forces in selecting proper candidates who would safeguard the unity and integrity of the country.

“In our view, it is not necessary to consider the philosophy of Hindu religion and its tenets of tolerance and respect for different religious faiths for the purpose of appreciating whether appeal was really made for Hindutva which is something different from outward practices and some of the following professed by followers of Hindu religion.”

2. December 11, 1995: Judgments were delivered in as many as five cases on the same day by the same bench comprising Justices J.S. Verma, N.P. Singh and K. Venkataswami. The earlier case was not even referred to in the judgments delivered by Justice Verma. He embarked on two misleading routes to gross error. In the first, Dr Ramesh Yeshwant Prabhoo vs. Prabhakar K. Kunte (1996) 1 SCC; 130, he cited two cases in which the words “Hindus” and “Hinduism” were defined and equated them with Hindutva. Two earlier rulings by the Supreme Court were recalled and the following conclusion was reached:

“These Constitution Bench decisions, after a detailed discussion, indicate that no precise meaning can be ascribed to the terms ‘Hindu’, ‘Hindutva’ and ‘Hinduism’, and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term ‘Hindutva’ is related more to the way of life of the people in the sub-continent.” This is factually wrong. Hindutva never came up in those two cases. “It is difficult to appreciate how in the face of these decisions the term ‘Hindutva’ or ‘Hinduism’ per se in the abstract can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition in sub-sections (3) and/or (3A) of section 123 of the R.P. Act (page 159).”

One was a case, decided in 1966, concerning the applicability of the Bombay Hindu Places of Public Worship Act 1956 to the Swaminarayana Sampradaya Satsanghis. Chief Justice P.B. Gajendragadkar’s elaborate discussion on “Who are the Hindus and what are the broad features of Hindu religion” was in this context. He dwelt on “the life and career of Swaminarayan” and held that the sect he founded “is not a religion distinct and separate from Hindu religion”. Ergo, the Act applied. (Sastri Yagnapurushdasji vs Muldas Bhudardas Vaishya, AIR 1966 SCC 1119.)

A decade later, the same issue arose in a case under the Wealth Tax, Income Tax and Expenditure Tax Acts. A Hindu had married a Christian woman after the partition of his joint family. Was their son a Hindu? Under the four codifying Acts on Hindu Marriage, Succession, Minority, and Adoptions and Maintenance, “any child one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu”, the court noted. It also considered generally what the word “Hindu” denotes (CWT vs R. Sridharan (1976), 4 SCC 489).

The Supreme Court has ruled time and again that a precedent must be read in the context of the facts of that particular case. Hinduism may be hard to define. Not so Hindutva, unless, of course, one identifies it with Hinduism. Justice Verma did just that: “ordinarily, Hindutva is understood as a way of life or a state of mind, that it is not to be equated with or understood as religious Hindu fundamentalism.” Has the BJP extended time, effort, and money all these years to espouse “a way of life”? That certainly is not how Hindutva is “ordinarily” understood.

Justice Verma proceeded to quote an obscure book. The quotation and his inference deserve to be set out in full: “In Indian Muslims—the Need for a Private Outlook by Maulana Wahiduddin Khan (1994), it is said: ‘The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures coexisting in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem’.”

From this the judge concluded: “The above opinion indicates that the word ‘Hindutva’ is used and understood as a synonym of ‘Indianisation’.” But if the Maulana was to be quoted, he should have been quoted fairly and understood properly.

Far from supporting the judge’s conclusion, the quote refutes it thoroughly. It was not in praise of Hindutva or its euphemism ‘Indianisation’ but in their censure.The paragraph preceding it lamented that Hindus did not treat Partition as ‘just an incident in past history’. The subsequent strategy ‘to solve the minorities problem’, through Hindutva or Indianisation, sought to impose ‘a uniform culture by obliterating the differences between all of the cultures co-existing in the country.’ Unlike Justice Verma, who quotes this to imply approval of this process, the Maulana disapproved of it.

This becomes all too clear from the very next sentence after his comment that it was thought that the obliteration would end the minorities problem. That sentence reads: “However beautiful this suggestion may appear to be, it is certainly impracticable.” Justice Verma did not note this sentence at all (page 81). The Maulana’s book is no authority on Hindutva. Its Bible is Savarkar’s book Hindutva, which Justice Verma studiously ignored. He ignored all the standard works on Hindutva also. Why?

Justice Verma cited the court’s ruling in Kultar Singh vs Mukhtiar Singh AIR 1965 SC 141 which concerned use of the word “Panth” by the Akali Dal. The word does not signify a religion but a community as such. It was held: “This party is recognised as a political party by the Election Commission notwithstanding the fact that all of its members are only Sikhs. It is well-known that there are several parties in this country which subscribe to different political and economic ideologies, but the membership of them is either confined to, or predominantly held by, members of particular communities or religions. So long as law does not prohibit the formation of such parties and in fact recognises them for the purpose of election and parliamentary life, it would be necessary to remember that an appeal made by candidates of such parties for votes may, if successful, lead to their election and in an indirect way, may conceivably be influenced by considerations of religion, race, caste, community or language. This infirmity cannot perhaps be avoided so long as parties are allowed to function and are recognised, though their composition may be predominantly based on membership of particular communities or religion. That is why we think, in considering the question as to whether a particular appeal made by a candidate falls within the mischief of section 123(3), courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction.”

Kultar Singh’s case on “Panth” cannot be equated with pleas for Hindutva. But this did not deter Justice Verma from confidently concluding: “Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of this court that the words like ‘Hindutva’ are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practicing the Hindu religion as a faith.

“Considering the terms ‘Hinduism’ or ‘Hindutva’ per se as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this court. … It may well be, that these words are used in a speech to promote secularism or to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticise the policy of any political party as discriminatory or intolerant.” The errors are many and glaring: 1. An earlier case in point is ignored. 2. Ignored also is the Bible on Hindutva by its author. 3. Maulana Wahiduddin Khan is cited not only in utter irrelevance but he is palpably misquoted. 4. Two decisions on “Hindu” and “Hinduism” are relied on irrelevantly. Hindutva is not synonymous with Hinduism, as everyone knows. 5. The court’s ruling on the Panth is pressed into service on Hindutva. 6. Other analyses of Hindutva were ignored. There were plenty of them. 7. The entire exercise was irrelevant and the discussion was obiter, pure and obvious. For, on the facts all the three speeches of Bal Thackeray, the Shiv Sena supremo, were held to be appeals for votes for his candidate “on the ground of his religion as a Hindu” and were therefore violative of the law. The appeal was dismissed. Why then did Justice Verma take all this trouble in an exercise in futility? The ruling studded with errors galore cries for reversal, not least because of the harm it does to political discourse.

Separation of state and religion undermined3. Manohar Joshi vs Nitin Bhaurao Patil & Anr (1996) 1 SCC 169. The issues were discussed again. Here are parts of some of the speeches in issue. “To save ‘Hindutva’ vote for BJP-Sena nominees” (Pramod Mahajan, BJP MP). “Mr Rajiv Gandhi does not know his own religion and thus has no right to speak on Hinduism” (Pramod Mahajan). “The result of these elections will not only depend on the solution to the problem of food [and] clothes but the same will also decide whether in the State the flame of Hindutva will grow or will be extinguished. If in Maharashtra the flame of Hinduism is extinguished, then anti-national Muslims will be powerful and they will convert Hindustan into Pakistan. If the flame of Hindutva will grow then in that flame the anti-national Muslims will be reduced to ashes” (Pramod Mahajan). “Rajiv Gandhi speaking on Hindutva is like a prostitute lecturing on fidelity. The country is again heading for Partition. It is, therefore, necessary that in these circumstances and to keep the flame of Hindutva alive, the alliance of BJP-Shiv Sena should be elected” (Mahajan). (Referring to Rajiv Gandhi): “wife Christian, mother Hindu, father a Parsee and therefore himself without any [Hindu] culture/teaching [vevarsi]” (Pramod Mahajan).

Justice Verma also said: “In our opinion, a mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion.” If this be the law there is nothing to prevent a Sikh leader from advocating a Khalsa state in Punjab or a Muslim from advocating an Islamic state in Kashmir. The wall of separation between state and religion in a secular polity was demolished.

4. Prof. Ramchandra Kapse vs Haribansh R. Singh (1996) 1 SCC 206. It was held that a candidate could not be held responsible for the contents of the election manifesto of his party, the BJP.

5. Suryakant vs Mahadik vs Saroj Sandesh Naik (1996) SCC 384. The speech “was an appeal by a Hindu to a congregation of Hindu devotees in a Hindu temple during a Hindu religious festival with emphasis on the Hindu religion for giving votes to a Hindu candidate espousing the cause of Hindu religion. Thus according to the pleadings in the election petition the speech made by the appellant was clearly an appeal to the voters on the ground of his religion. The evidence which proves the speech made by the appellant in a Hindu temple during a religious festival addressed to Hindu devotees forming the religious gathering has to be understood in this context. The word ‘Hindutva’ used in the speech of the appellant at that time, place and occasion has to be understood only as an appeal on the ground of Hindu religion, that is, by the candidate on the ground of his religion. As earlier stated, the word ‘Hindutva’ in the abstract and in a different context addressed to a different gathering may have different meaning related to Indian culture and heritage unrelated to religion, but in the present context it has only one meaning as indicated.”

6. Ramakant Mayekar vs Celine D’Silva (1996) 1 SCC 399. Justice Verma went out of his way repeatedly and wrongly to censure Justice Variava, a respected judge of the Bombay High Court who became a judge of the Supreme Court. “The tenor of the impugned judgment, particularly the above extract, leaves no doubt that the High Court was of the view that any appeal for votes wherein mention was made of ‘Hindutva’ is by itself sufficient to amount to an appeal for votes for the Hindu candidates of Shiv Sena-BJP on the ground of their religion and is a corrupt practice or creates enmity and hatred amongst different classes of citizens on the grounds of religion and community. The above extract from the decision itself is sufficient to indicate the erroneous perception in this behalf which is clearly contrary to law. … the use of the word ‘Hindutva’ in the abstract was understood by the High Court to amount to an appeal for votes on the ground of Hindu religion if the candidate happened to be a Hindu to constitute the corrupt practice.”

A powerful plea was made for a reversal of Justice Verma’s judgments on Hindutva. He rejected it brusquely on March 22, 1996 (Mohammad Aslam vs Union of India & Ors. (1996) 2 SCC 749). “A careful and dispassionate reading of the decision would show that the apprehensions and misgivings expressed in the writ petition are imaginary and baseless. We may add that the deficiency, if any, in the statutory prohibition enacting the corrupt practice in Section 123 of the Representation of the People Act, has to be cured by legislation.”

Attempt to resist biasAll this proved too much for other judges of the Supreme Court. A few days later, on April 16, 1996, came a ruling by a different bench comprising Justices K. Ramaswamy, S.P. Bharucha and K.S. Paripoornam in Abhiram Singh vs C.D. Commachen & Ors. (1996) 3 SCC 665. All the previous cases were referred. The court said: “As stated earlier, when and under what circumstances, speeches of the leaders of the political party or the appeal of any other person with the consent by a candidate or his election agent to vote or refrain from voting on the ground of religion, race, caste or community or language, etc. or promotion or an attempt to promote feelings of enmity or hatred between different classes of citizens of India on the ground of religion, race, caste, community or language with the consent of the candidate or his election agent for the furtherance of the prospects of the election of the candidate or prejudicially affect the election of any candidate, constitutes corrupt practice under sub-sections (3) or (3-A) of Section 123. Its content and scope also require to be clearly laid down authoritatively lest miscarriage of justice in interpretation of “corrupt practice” involved in every election petition would ensue. The purity of election process gets fouled and [sic] becomes fraught with deleterious effect in a democratic polity.

“Thus, without expressing any opinion on these questions, we are of the view that the entire case requires to be heard and decided by a larger Bench of five Judges since the decision thereon impinges upon the purity of election process and requires to be decided authoritatively.

“We, therefore, direct the Registry to place the case before our learned brother, the Chief Justice for constituting a larger bench of five judges, and, if possible, at an early date so that all the questions arising in the present appeal could be decided authoritatively and expeditiously.” Clearly, two issues were to be referred to by a larger bench. One was responsibility for speeches of the party earlier. The other was “the content and scope” of the speeches. To leave no room for doubt the judges stressed the bearing on the “purity of the electoral process” and the deleterious effect in a democratic polity. Two decades rolled by without any Chief Justice constituting the bench. Meanwhile, Lok Sabha elections were held in 1998, 1999, 2004, 2009 and 2014 without any check on the BJP’s propaganda.

The references by a larger bench in two cases were heard on limited issue. In Narayan Singh vs Sunderlal Patwa (2003) 9 SCC 300, a Constitution Bench observed in its order dated August 28, 2002, that the High Court in that case had construed Section 123(3) of the Representation of the People Act, 1951, “to mean that it will not be a corrupt practice when the voters belonging to some other religion are appealed, other than the religion of the candidate”.

In the referring order in Narayan Singh, the court observed that in the nine-judge bench decision in S.R. Bommai vs Union of India, there were certain observations which were contrary to the decisions of three-judge benches. The order of reference said inter alia: “In view of certain observations made in the Constitution Bench decision of this Court in Kultar Singh case we think it appropriate to refer the matter to a larger bench of seven judges to consider the matter.”

Recent judgmentIn a judgment delivered on January 2, 2017, it was said: “The present civil appeal was initially referred by a bench of three judges to a Constitution Bench on 16 April 1996 [(1996) 3 SCC 665]. When the civil appeal came up before a Constitutional Bench (2014) 14 SCC 382, one of the questions which fell for consideration was the interpretation of Section 123(3). Following the reference to seven judges made in Narayan Singh, the present civil appeal was also referred on the question of the interpretation of Section 123(3). The order of reference dated 30 January 2014 (not of 16 April 1996) explains the limited nature of the reference, thus: ‘Be that as it may, since one of the questions involved in the present appeal is already referred to a larger bench of seven judges, we think it appropriate to refer this appeal to a limited extent regarding interpretation of sub-section (3) of Section 123 of the 1951 Act to a larger bench of seven judges.’ The reference to seven Judges is limited to the interpretation of Section 123(3).”

Why the emphasis on the “limited nature”? The 1996 reference covered the wider issue of Hindutva also. It was whittled down to exclude Hindutva and confine the reference to the issue raised in Narayan Singh’s case. The reference to “the content and scope” of the speech was ignored.

The Reference Order in 1996 was truncated. When the case came up for hearing on October 25, 2016, Chief Justice of India T.S. Thakur said: “We will not reconsider the 1995 judgment and also not examine Hindutva or religion at this stage”—which the Order of Reference on April 16, 1996, clearly required a larger bench to do. “At this stage, we will confine ourselves to the issue raised before us in the reference.” He might, and ought to have, added “as truncated by us”. He added gratuitously: “In this reference there is no mention of the word Hindutva.” Indeed not; for the words in the Order of April 1996 directed a reference of an omnibus nature which included Justice Verma’s judgment. His conclusion was emphatic: “We will not go into Hindutva at this stage.” At what stage, then, pray? (Asian Age, October 26, 2016). Applications for intervention by Teesta Setalvad and others with pleas to reconsider the Hindutva ruling were rejected.

Divided verdictThe seven-judge bench gave a divided verdict on January 2 in Abhiram Singh vs C.D. Commachen & Ors. At issue was interpretation of Section 123 (3) of the Representation of the People Act, 1951, which forbids “[t]he appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

Section 123 (3A) reads: “The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of that candidate or for prejudicially affecting the election of any candidate.” Around the same time Section 153A of the Penal Code was also amended in a “package deal”, as the judges remarked Hindutva surely violates both Section 123 (3) and (3-A).

Justices B.N. Lokur and L. Nageswar Rao held that Section 123 “must be given a broad and purposive interpretation so as to cover not only a plea to the voters by the candidate or his agent or someone on the ground of his religion or caste—as all earlier cases had said—but also on grounds of the voter’s religion, caste, etc. This was the result of a “purposive” interpretation which gives free rein to the judges’ subjective inclinations.

Usurping of legislation functionJustice S.A. Bobde concurred: “The word ‘his’ occurring in the Section refers not only to the candidate or his agent but is also intended to refer to the voter i.e. the elector.” This was a quantum jump in which Chief Justice T.S. Thakur joined enthusiastically. He quoted revealingly this passage in an earlier case [(2015) 8 SCC 1] in which the Supreme Court said: “In the background of the constitutional mandate, the question is not what the statute does say but what the statute must say. If the Act or the Rules or the bye-laws do not say what they should say in terms of the Constitution, it is the duty of the court to read the constitutional spirit and concept into the Acts.” This is a naked usurpation of legislative power by the court.

Against this background, the powerful dissent by Justice D.Y. Chandrachud, with which Justices Adarsh Kumar Goel and Uday Umesh Lalit concurred, comes as a relief. It has been established for centuries that a penal provision must be construed strictly. There is no room for stretching it in the name of “purposive” interpretation. Justice Chandrachud said: “The vote is solicited for a candidate or there is an appeal not to vote for a candidate. Each of these expressions is in the singular. They are followed by expression ‘on the ground of his religion…’ The expression ‘his religion…’ must necessarily qualify what precedes; namely, the religion of the candidate in whose favour a vote is sought or that of another candidate against whom there is an appeal to refrain from voting. ‘His’ religion (and the same principle would apply to ‘his’ race, ‘his’ caste, ‘his’ community, or ‘his’ language) must hence refer to the religion of the person in whose favour votes are solicited or the person against whom there is an appeal for refraining from casting a ballot. …

“The Constitution is not oblivious to the history of discrimination against and the deprivation inflicted upon large segments of the population based on religion, caste and language. Religion, caste and language are as much a symbol of social discrimination imposed on large segments of our society on the basis of immutable characteristics as they are of a social mobilisation to answer centuries of injustice. They are part of the central theme of the Constitution to produce a just social order. Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy.”

He pointed out that “there is no warrant for making an assumption that Parliament while enacting Section 123(3) intended to sanitise the electoral process from the real histories of our people grounded in injustice, discrimination and suffering. … if the provision is construed to apply to the religion of the voter, this would result in a situation where persons contesting an election would run the risk of engaging in a corrupt practice if the discourse during the course of a campaign dwells on injustices suffered by a segment of the population on the basis of caste, race, community or language.” The three dissenting judges concluded: “No case has been made out to take a view at variance with the settled legal position that the expression ‘his’ in Section 123(3) must mean the religion, race, community or language of the candidate in whose favour an appeal to cast a vote is made or that of another candidate against whom there is an appeal to refrain from voting on the ground of the religion, race, caste, community or language of that candidate.”

Majoritarian viewThe majority view spelt a majoritarian, not a secular polity. Consider just two facts. On August 10, 2013, the Nationalist Congress Party (NCP) leader Sharad Pawar referred to police bias against Muslims. “How will they see this country as their own country?” (See the writer’s article “Muslims & Police”; Frontline, December 12 and 26, 2016.)

All hell broke loose in Mumbai’s press the day after Asaduddin Owaisi, president of the Majlis-e-Ittehadul Muslimeen, said in the city on January 1, 2017, that Muslims must get Rs.7,000 crore in the Bombay Municipal Corporation’s budget of Rs.37,000 crore. Would a Muslim candidate be disqualified if he had spoken as Sharad Pawar or Asaduddin Owaisi did?

However, as far back as on July 2, 1980, the United States Supreme Court upheld a law that set aside 10 per cent of the public works contracts for businesses owned by members of racial minorities. H. Earl Fullilove, a white New York contractor, challenged the law on the ground that it discriminated against whites.

Chief Justice Warren Burger said that affirmative action programme by Congress may “deprive some people who may themselves be innocent,” but that a limited “sharing of the burden by innocent parties is not impermissible” under the Constitution: “The Congress has not sought to give select minority groups a preferred standing in the construction industry, but has embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities. There has been no showing in this case that Congress has inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the minority business enterprise program.” (Fullilove vs Klutznick; 448 U.S. 448, 1980).

Would an elected legislator be unseated if he had made such a demand during his election campaign? It is woefully clear that it is not politicians alone who need to be educated about the rights of the minorities. Chief Justice J.S. Khehar should repair the omission of his predecessors and constitute a larger bench on Hindutva. Justice J.S. Verma’s judgment is full of grave errors. The earlier judgment which pronounced against Hindutva on July 14, 1995, he did not refer to, let alone overrule. It stands. Only a larger bench can restore clarity and public confidence.